The State Office of Services to Children and Families (SCF) first contacted
mother and father in August 1993 as the result of a referral. (1) When the SCF caseworker
went to the family's home to investigate, mother appeared to be under the influence of
intoxicants and the children were unsupervised. Father was not home, but he met with
the caseworker the next day at her office. At that time, father would not recognize that
mother had a substance abuse problem that interfered with her ability to care for the
children, nor would he accept the services offered by SCF. Father told the caseworker
that he would monitor the problem and that if the children were at risk, he would not go
to work. SCF took no further action at that time.

Despite father's assurances that he would monitor the problem, on at least
one occasion, he left the children in mother's care even though he believed mother had
been drinking. Father also took no action after other family members told him that
mother had been driving under the influence with the children in the car and that she had
left the baby in a crib all day after passing out from drinking. At one point, father
obtained a restraining order against mother, but they reunited approximately a month after
the restraining order was issued.

Despite his drug use, father maintained regular employment with a
construction company until 1995. After leaving his work, father began manufacturing
and selling methamphetamine. In May 1996, police officers raided the family's home.
They found methamphetamine in a bedroom. The officers also found equipment and
chemicals used to manufacture methamphetamine in the garage. One of the officers
testified that the methamphetamine in the bedroom was accessible to the children and that
the methamphetamine lab presented a health hazard to the occupants of the home. There
was evidence at trial that the daughter had seen one part of the methamphetamine
manufacturing process.

In November 1996, SCF filed petitions to terminate both mother and
father's parental rights. The termination hearing was postponed, however, because
"[m]other appear[ed] to have made significant progress and further assessment [was]
necessary." At the same time that SCF was deciding whether to proceed with the
termination of mother and father's parental rights, both parents were facing criminal
charges as a result of the discovery of the methamphetamine laboratory in their home.
According to father, he agreed to plead guilty in return both for a lesser sentence and a
promise that the charges against mother would be dropped. Mother agreed that it was his
goal to keep her out of jail so that she would be available to care for the children.
Pursuant to the plea bargain, father was convicted in federal court in April 1997 for
possessing a precursor chemical used to manufacture methamphetamine and for the intent
to manufacture methamphetamine.

The evidence showed that, after the May 1996 raid of his home but before
being incarcerated in federal prison in October 1997, father enrolled in a program with
the Lane County Addiction Counseling and Education Services (ACES). Initially, father
stated that he had enrolled in the ACES program to avoid spending more time in prison.
One of father's counselors in the ACES program testified that, although father's initial
motivation--to avoid a long prison sentence--was external, father later became more
internally motivated. In early 1997 father tested positive for drugs while enrolled in the
program. Notwithstanding that single relapse, father successfully completed the ACES
program.

One of his counselors wrote that father had come to her and asked for more
help, apparently after the relapse. She explained: "That was the needed boost that he
required. He has done an excellent job in his treatment since that time in May of 1997.
He has a thorough grasp of what is needed in order for him to continue a recovery
lifestyle. My prognosis for him and his future is quite positive." She also stated that
father "was the most successful client [she had] ever worked with. He's a counselor's
dream. It's my estimate that he will be helping inmates with recovery when he's in
prison."

On cross-examination, SCF's attorney questioned whether father was simply
focused on his own needs. The counselor answered, "It was always my impression that
[father] cared deeply about his children and his family and that he was interested in
changing and improving his own life situation with the hope that he could and would
have a healthy family." When SCF's attorney pressed the point again, the counselor
replied:

"Well, I can't speak to what might have been going on in [father's]
head, only to my impressions. And my impression was that, he wanted his
children, he grieved over being separated from his children, he frequently
talked about his children and his sense of obligation as a parent and as a
father and the kind of father that he wanted to be for his children, and being
separated from them was difficult. And it's--I guess it's my impression that
if he had any genuine ability to make the situation anything different, that
he would want to be with his children, living with his children, raising his
children."

In addition to completing the ACES program, father voluntarily took and
completed a parenting class through the Relief Nursery before reporting to prison. In that
class, his "attendance and participation throughout the months this class was conducted
w[ere] excellent. He demonstrated a sincere commitment to learning from the material
being shared [and] was supportive of other group member's experience[.]"

While in federal prison, father completed a required 40-hour drug class.
Also, with the help of volunteers who visited the prison, father worked to initiate and
develop a 12-step narcotics or alcoholics anonymous program in prison. At the time of
the termination hearing, in addition to the 12-step program, father was participating in a
500-hour program for substance abuse. While incarcerated, father chose to quit smoking
even though smoking is permitted in federal prison. Father explained that he quit
smoking because his children asked him to and he wanted to do it for them. In addition to
the drug programs, father took a parenting class, a human sexuality class, and a real estate
class while in prison, all to become a better parent for his children.

The instructors in the federal prison uniformly praised father's efforts to
improve himself. On the final grade sheet in father's parenting class, the instructor wrote
that father "was an excellent student" and that "his positive outlook and enthusiasm
served as a model for other students." Father's real estate instructor wrote a letter on
father's behalf stating that father "is one of the few that deserves recognition for his
devotion to his family and his future in [s]ociety." Additionally, because of his good
behavior while in prison, father worked outside the prison on a forestry work crew.

As noted above, Basham was asked a series of hypothetical questions at
trial because he had not spoken with father since February 1997. When asked whether
the fact that father had stayed drug free in prison was significant, Basham replied "[t]he
fact of staying free of drugs while incarcerated really says nothing about long-term
prospects [for staying drug free]." On cross-examination, father's counsel provided
Basham with additional information in the form of hypothetical questions about what
father had done while in prison in addition to staying drug free. When asked if it made a
difference that father had also completed two drug programs in the penitentiary (one of
which involved 500 hours of work), had completed a parenting class at the Relief
Nursery, had voluntarily quit smoking, had "voluntarily started up an AA or an NA class
in the penitentiary" and had become a leader in the class, had learned to work with
counselors and had fully cooperated with SCF through the course of the 1999 termination
proceedings, Basham acknowledged that it "certainly could." Although Basham raised
the possibility that father's actions in prison might have been "done to look good to
others," he candidly acknowledged that it was impossible for him to "make that
diagnosis" in 1999 since he had not seen father for more than two years.

Following the termination hearing, the trial court agreed with SCF that the
children need permanency now. The trial court found that father's belief that making the
children wait a few more months will not harm them "is an example of father's continued
inability to put the children's needs ahead of his own." The trial court was also
unconvinced that father would remain drug free after his release from prison and
concluded that "the fact of father's continued incarceration and the high likelihood that he
will relapse pose an unacceptable risk to the mental and emotional well being of the
children." The trial court accordingly terminated father's parental rights and committed
the children to the permanent care, custody, and control of SCF.

On appeal, SCF argues that the trial court properly terminated father's rights
under ORS 419B.504 (1997). (7) That statute authorizes termination if "the parent or
parents are unfit by reason of conduct or condition seriously detrimental to the child and
integration of the child into the home of the parent or parents is improbable within a
reasonable time due to conduct or conditions not likely to change." Textually, the statute
requires a court to answer two related but separate questions. The first is whether a
parent is presently unfit by reason of conduct or condition that is seriously detrimental to
the child. State ex rel Juv. Dept. v. Johnson, 165 Or App 147, 156, ___ P2d ___ (2000); State ex rel SOSCF v. Burke, 164 Or App 178, 186-87, 990 P2d 922
(1999); State ex rel SOSCF v. Wilcox, 162 Or App 567, 573, 986 P2d 1172 (1999). If the
parent is presently unfit by reason of conduct or condition, then a court must ask whether
that conduct or condition makes it improbable that the child can be integrated into the
parent's home within a reasonable time. See id. In determining whether integration can
occur within a reasonable time, the focus is on the child's "emotional and developmental
needs and ability to form and maintain lasting attachments." See ORS 419A.004(17);
State ex rel SOSCF v. Duncan, 164 Or App 610, 613-14, 993 P2d 818 (1999). If the
parent is presently unfit and integration is not probable within a reasonable time, the final
question is whether termination is in the child's best interests. (8)

SCF also appears to argue that father's substance abuse makes him unfit as a
parent. It is certainly true that before 1996, father had a long and persistent history of
drug use. That drug use led to and resulted in the neglect of his children. Had SCF
moved to terminate father's parental rights in 1996, the record suggests that SCF would
have been successful. However, because of its efforts to rehabilitate mother, SCF waited
for several years before seeking to terminate both parents' rights. By the time the
termination hearing took place in June 1999, father had made significant progress toward
turning his life around and resolving the single issue--his use of illegal drugs--that had
prevented him from being a good father to his children. As Basham concluded in his
February 1997 psychological report, "if [father is] able to show ongoing recovery and if
[he is] able to demonstrate good involvement in services and maintain [his] ongoing
recover[y], there is a reasonable prospect that [he] could continue raising the children
successfully."

Since 1997, father has done all that Basham asked. He has participated in
numerous programs. He has demonstrated good involvement in services; he has
maintained his ongoing recovery; and he consistently has received high praise from all of
the treatment providers who have worked with him. SCF, however, argues that we
should discount father's progress. It notes that his former mother-in-law testified that
father "knows what people want to hear, he knows the right thing to do, [and] he knows
the right thing to say." His former mother-in-law explained that "most of the time he
believes [what he is saying]. But he just doesn't seem to be able to make it happen." SCF
also argues that father's "pattern of relapses into substance abuse treatment" calls into
question the possibility that he will continue to stay drug free after his incarceration.

SCF also relies on the testimony of father's former mother-in-law to show
that although father may be saying the right things to his treatment providers, he will not
be able to carry through with his plans. However, the professionals who worked with
father, and countless other substance abusers, found father's progress exemplary. In their
professional judgment, father had accomplished what few other persons in his position
had. SCF provided no evidence that directly contradicted those persons' assessment of
father's accomplishments. Indeed, Basham testified that he could express no opinion on
whether father's progress was genuine, as the professionals believed, or insubstantial, as
father's former mother-in-law apparently believed. We appreciate the dissent's concern
that father may relapse. We cannot say, however, that SCF has proven by clear and
convincing evidence that father's prior drug use makes him presently unfit. As we
explained in State ex rel SOSCF v. Armijo, 151 Or App 666, 679-80, 950 P2d 357 (1997),
the point is not that we are certain that father will succeed. Rather, the record does not
show, by clear and convincing evidence, that he will not. In light of father's considerable
efforts to become a better parent, father is entitled to a reasonable opportunity to show
that those changes are permanent. See State ex rel CSD v. Rollins, 136 Or App 7, 13, 900
P2d 1072 (1995).

On this record, neither father's incarceration nor the possibility of a relapse
provides clear and convincing evidence that father is presently unfit under ORS 419B.504
(1997). See Rollins, 136 Or App at 13-14. Accordingly, we need not decide whether the
conduct or condition that makes father unfit also makes integration of his children into his
home improbable within a reasonable time. See ORS 419.504 (1997); Wilcox, 162 Or
App at 573. Although father's parental rights should not have been terminated, that
conclusion does not mean that his children must be returned immediately to him. See
Rollins, 136 Or App at 14. As we explained in Johnson, while working toward returning
the children to father, SCF may take appropriate action if intervening events warrant such
action. 165 Or App at 161.

Reversed.

Deits C. J., dissenting

I agree with the majority that, while he has been in prison, father has made
significant efforts to combat his drug addiction and that he has, in fact, been a model
prisoner in many ways. I do not agree, however, with the majority's conclusion that
father's efforts are sufficient to justify exposing his children to the risk of suffering a
continuing indefinite period of instability in their lives. Therefore, I respectfully dissent.

As the majority correctly explains, our task on de novo review is to
determine whether the state has proven by clear and convincing evidence that father is
presently unfit by reason of conduct or condition that is seriously detrimental to the
children and that integration of the children into father's home is improbable within a
reasonable time due to conduct or conditions not likely to change. ORS 419B.504; State
ex rel Juv. Dept. v. Johnson, 165 Or App 147, 156, ___ P2d ___ (2000). Because the
majority concludes that the state failed to prove, clearly and convincingly, that father was
unfit at the time of trial, it fails to reach the issue of "whether integration of the [children]
into the home of [father] is improbable within a reasonable time due to conduct or
conditions not likely to change." ORS 419B.504. As I will explain, I believe that the
state did prove that father was presently unfit and, therefore, I would reach the question of
whether integration of the children into father's home is improbable within a reasonable
time. The answer to that question involves consideration of, among other things, how the
children have been affected by father's situation.

It is undisputed that, at the time of trial, father was incarcerated and was,
therefore, unable to care for his children. It is true that "we have consistently held that
incarceration alone does not warrant a finding of unfitness, although a prolonged period
of incarceration will warrant such a finding." ___ Or App at ___ (slip op at 10).
However, while incarceration alone usually will not support a finding of unfitness,
incarceration in addition to other factors may support such a finding. In my view, the
majority incorrectly concludes that "neither father's incarceration nor the possibility of a
relapse provides clear and convincing evidence that father [was] presently unfit under
ORS 419B.504 (1997)." ___Or App at ___ (slip op at 13) (emphasis added). The
majority errs in analyzing father's incarceration and drug problems separately to
determine whether he was unfit. At the time of trial, not only was father unable to
physically care for his children because he was incarcerated, but, as he testified, there
would be an additional period of time after his release before he could possibly care for
them. To be in a position to care for his children, father will have to prove that he is able
to maintain his sobriety outside of a controlled environment, obtain steady employment,
establish a home, and prove to SOSCF that he is a competent parent. Consequently, in
my view, there is no question that, at the time of trial, father was unfit to parent by reason
of conduct or condition.

As noted above, the question that the majority does not address and that I
believe is determinative here, is whether "integration of the [children] into the home of
[father] is improbable within a reasonable time due to conduct or conditions not likely to
change." ORS 419B.504 (emphasis added). I agree with the trial court that the answer to
that question is no.

In answering that question, I would first note that, as we pointed out in our
decision in State ex rel SOSCF v. Duncan, 164 Or App 610, 613, 993 P2d 818 (1999), the
statutory standard has changed. Now, rather than determining whether reintegration of
the children into the parent's home is improbable in the "foreseeable future," we must
decide whether reintegration is improbable "within a reasonable time." A "reasonable
time" is defined in the statutes as "a period of time that is reasonable given a child's
emotional and developmental needs and ability to form and maintain lasting attachments."
ORS 419B.504; ORS 419A.004(17); Duncan, 164 Or App at 613-14. Consequently, in
deciding what is a "reasonable time," we must consider all of the circumstances of each
individual case, including the history of the parent's condition, its impact on the children,
and the individual needs and abilities of each child.

In arguing that his parental rights should not be terminated, father relies
strongly on his efforts to overcome his problems while in federal prison serving his
sentence on the drug charges that resulted in the placement of his children in state custody
in 1996. He contends that his efforts demonstrate that he is "entitled to have the
opportunity to regain custody of his children." Father's efforts during this current
incarceration are laudable. However, these efforts must be considered in the context of
father's past behavior and the impact that behavior has had on his children.

The record shows that father has had a fairly extensive history of treatment,
relapse and escalating drug use. He was first convicted on drug charges in 1986. While
serving a suspended sentence for that offense, he violated the conditions of his probation
and was sent to prison. After serving three months in prison, he was given temporary
leave. However, in 1989, he was again found in possession of drugs. He then entered
and successfully competed a six-month chemical dependancy treatment program. He
remained drug free for a period of about 18 months, after which he began using alcohol
and drugs again. This relapse occurred in 1991, shortly after the birth of his first child.
As father's drug use escalated, he lost his job. His involvement in the drug culture
increased until, in 1996, after being unemployed for some time, he became involved in
the manufacture of methamphetamine.

In May 1996, Eugene police officers raided the home, where father, mother,
and the children lived, and found a methamphetamine lab. Following that incident, father
did not begin a drug treatment program until approximately six months after his arrest.
His delay in seeking treatment was apparently out of concern that his involvement in
treatment might be used against him in his criminal case. In fact, he continued to use
methamphetamine during the time between his May arrest and September when he was
officially charged. He began a drug treatment program in November of 1996, at about the
time that a hearing was scheduled on the wardship of the children. However, father again
tested positive for drug use in April 1997. He began serving his prison sentence in
October 1997.

Father's lengthy history of drug use is countered by his success in
completing drug treatment programs while in prison. That success, however, is not a
guarantee that father will be able to maintain his sobriety after his release. Dr. Basham,
who, at the request of SOSCF, conducted a psychological evaluation of father in February
1997, testified at trial. He discussed his expectations for a person of father's personality
type following release from prison:

"The fact of staying free of drugs while incarcerated really says
nothing about long-term prospects. Many individuals who are drug-addicted and spend time in jail and prison will resume patterns of past drug
use even after relatively long periods of incarceration. So a dependence on
drugs is often a largely psychological factor which is not diminished solely
by the fact of not having drugs available.

"It would certainly be a required number of months of returned
living in the community and that would depend upon the level of motivation
and monitoring. If a person was being, for example, monitored through
urinalyses and faced with an immediate consequence of returning to prison
for drug use, the external motivation for change remains and so there's still
the question about whether they will make those efforts once those external
motivations are gone."

In addition, witnesses at the termination proceeding, including mother,
stated that father has a tendency not to perform as promised and to say or do whatever is
necessary to get what he wants. The children's foster mother, who knew father quite well,
testified that:

"I think [father] has good intentions, I think [he] wanted these things to
happen. I think [father] is a very likeable, very nice person. He knows
what people want to hear, he knows the right thing to do, he knows the right
thing to say. And at the time, I think he believes it, that he can do it. He
believes or knows, most of the time he believes it. But he just doesn't seem
to be able to make it happen.

"* * * * *

"[Father] really presents a good image, [he] is a nice person, a good person
in many ways. And I like [him] a lot. But I feel like his character is such
that when somebody is watching and doing things he will look good. He
got off early probation on his first time in prison because he was playing
golf with the probation officer. He'd tell me about that. And how good he
was doing and what he was doing and how they were really happy with his
progress. But it wasn't that much longer that I felt he was re-involved with
drug activities."

As discussed above, the statute requires that the children's developmental
and emotional needs be considered in deciding whether their reintegration into father's
home is probable within a "reasonable time." The evidence here shows that the children
have been adversely impacted by the uncertainty in their lives created by the
unavailability of their parents. The majority notes that the children's therapist, Linda
Seymour, testified that they are "doing very well by comparison [to other children who
have been in foster care for the same length of time]." ___ Or App at ___ (slip op at 7).
This statement, however, must be considered in context. The same counselor also
testified that she sometimes refers to children in situations similar to the one here "as the
ghost children because they seem insubstantial in their connection with the world and
with reality and with present time because they're so insecure about what's going to
happen for them." The counselor testified with respect to the specific problems that
father's children are experiencing:

"The problems were mostly around an anxiety adjustment to life's
circumstances. Simply put, they had lots of stuff going on in their lives. It
was confusing to them and they were anxious about it.

"* * * * *

"I think that they've come--it comes and goes with them when things
change in their life. For instance, the last time they came back in, it was
because of this pending termination, parental rights termination. There was
a lot more anxiety. It was coming up for [daughter], for instance, it was
coming up in a problem at school where her teacher had the complaint that
she could no longer pay attention in school to do her schoolwork. And she
exhibited a lot of what we call parentified behaviors, when the child takes
on an adult role and tries to control the situation to reduce their anxiety by,
you know, trying to make sure that everything stays in place and everybody
does what they're supposed to, and bossing her little brother and behaviors
like that. Lots of tension and stress.

"The other thing that I was concerned about with [daughter] at that
time was that she had a remarkably different physical appearance from the
previous time I had seen her. And apparently she had gone from a size
eight dress to a size 12 dress in a few months. That would indicate to me
that there was a great deal of anxiety in her life and that she was probably
over-eating to try to reduce that."

Fortunately, the children's foster mother has apparently provided a stable
and supportive environment for the children. Nonetheless, the evidence shows that these
children have been seriously affected by their circumstances. Because of the tension and
stress surrounding their situation, the children have had trouble in school, social
difficulties, physical problems, and the older child exhibits parentified behaviors--taking
on adult roles to try to control her environment.

Seymour testified that the children need permanency, safety and to know
where they are going to be next week, next month and next year. She said that if they
have to wait another year for that permanency that:

"Their life goes on hold, it continues to be on hold developmentally.
It's very difficult for a child to continue to make progress in their life, go
through the developmental stages that they need to go through to become
adults if even their present is tentative, that they don't know what's going to
be predictable for them."

The majority holds that father should be given a reasonable opportunity to
show that the changes he has made are permanent. I agree that parents should be given a
reasonable opportunity to prove themselves as parents, but they are not entitled to
unlimited opportunity. There comes a time when a child's need for permanency and
stability requires that a parent's rights be terminated. At the time of trial, father had been
unavailable to parent these children for three years. Contrary to the majority's
understanding of the testimony at trial, the earliest father will be available to care for his
children is a year. Rather than "cutting" against the state's case the uncertainty about how
long it may take father to be ready to parent his children is the state's case. Under a best
case scenario, father would be released from prison in October 1999. He would then be
placed in a halfway house, followed by supervised release. He estimated that he could be
ready for the children to be reintegrated into his home about a year after his release from
prison. Even assuming that father is successful, these children should not be forced to
remain "on hold" waiting for him.

The difficult and critical question in this case is whether, after considering
all of the circumstances--including father's history, the length of time the children have
been in foster care, and these children's need for permanency--the risk posed to the
children, by the continuing uncertainty in their lives, if father's rights are not terminated,
is too great. The trial court, which had the opportunity to observe father as a witness,
addressed this question in an articulate and thoughtful manner and concluded that the risk
to the children was too great:

"The other thing that I think needs to be taken into account is the
history that's presented by [father] and how I have to weigh that against the
needs of the children. * * * And the point that I end up with that I've been
unable to find a reasonable way to move away from or to avoid is that these
children, as commented already by the testimony and argument of counsel
and Ms. Seymour's testimony and by anybody's understanding, what needs
the children have is for permanency now. And that's an extremely
important need. That because of the convictions that [father] has, which I
take to be not simply the most recent but it's also that his sentence was
influenced by his prior conduct, he's unavailable to provide.

"And while it may be all well and good for counsel to say, well,
maybe a few more months is not that much to wait, that takes us -- first of
all, I think that's easy enough for counsel representing the father to say, but
I don't have to buy into it. It also does not really address the additional
question of whether or not these children should be put into the posture of
the risk, which I consider to be high, that this won't work out. And I take
into consideration with respect to that the fact that while [father] has
presented himself as hard working and now internally motivated to be clean
and sober, my guess is that he would have said to me at the end of that
session with Passages * * * that he is internally motivated to be clean and
sober then, that his incarceration in the criminal division, when though
relatively short, was enough to cure him and that he was now mature
enough that he wasn't going to have a further relapse.

"But instead of the success that he would have wanted me to hear
about, and he perhaps internally believed was true, by 1996 he's up to the
hubs in the drug culture far worse than, as far as I know, than he was
before. No longer was he simply possessing it or making delivery here or
there, he was on full scale manufacturing routine * * * [.]

"And then, after the apparently successful treatment with ACES as
provided by Mr. Ricker, we have yet another relapse in the time when he is
under supervision and is facing sentencing in the federal case.

"So, I'd have to say that in my estimation, and I find by clear and
convincing evidence, that the fact of his incarceration which will not make
him available within a reasonable period of time, * * * I find by clear and
convincing evidence that there is way too much risk that we're going to be
looking down the same problem somewhere in the future. And it's way
more risk than I'm going to put these children through."

I agree with the trial court that the state has proven that reintegration of the
children into father's home in a "reasonable time is improbable" and that, under all of the
circumstances here, termination is in the best interests of the children. I would affirm the
trial court's decision to terminate father's parental rights.

3. Basham also noted that father "does not appear to have a full antisocial
personality disorder, but does have some issues with authority and resentments about how
he has been treated." Basham accordingly noted that father had antisocial personality
traits. He observed that the presence of those traits is a negative prognostic sign that
father will remain free from drugs after he is released from prison.

4. The social worker acknowledged that on November 2, 1998, she had told
the CASA

"the children are in a good, stable home, are feeling secure about being
there. [The social worker] feels like [daughter] is a little parentified, not
too badly, though, and that she does the worrying for the two. That [son]
basically follows her lead and is concerned when she's concerned. Overall
though, she thinks the children are doing really well."

5. A SCF social service specialist testified that this is much more visitation
than most of SCF's clients have. The reason for such extensive visitation was that the
foster parent was able to supervise the visits and because SCF had received positive
reports about the parents from Relief Nursery and from Head Start, where the children
had been enrolled before the parents' arrests in May 1996.

6. SCF's representative appears to have placed too much reliance on Basham's
testimony in two respects. First, Basham did not say that the fact that father was
undergoing services in prison is no indication that he will remain clean and sober when he
is released. Rather, Basham testified in response to a hypothetical question that the fact
that father had remained clean and sober in prison was not a reliable indicator. When
Basham answered that question, he had no information about either the programs in
which father had participated while in prison or his counselors' assessment of his
progress. Second, Basham testified that he could not offer an opinion on father's
prospects once he was released because he had not seen him in more than two years.

7. In its petition to terminate father's parental rights, the state alleged two
statutory grounds for termination: (1) that father was unfit, see ORS 419B.504 (1997)
and (2) that he failed or neglected without reasonable and lawful cause to provide for the
basic physical and psychological needs of the children for six months before the petition
was filed, see ORS 419B.506 (1997). The trial court found only that father was unfit
under ORS 419B.504 (1997). On appeal, SCF has not argued that father failed or
neglected to provide for the children's basic physical and psychological needs for the six
months before it filed the petition to terminate father's parental rights. We accordingly
limit our analysis to the question whether father is unfit under ORS 419B.504 (1997).

8. SCF must prove each statutory element by clear and convincing evidence.
We review the record de novo, ORS 419A.200(5), although we give "'considerable
weight' to the [trial] court's findings on issues of credibility," Burke, 164 Or App at 187.

9. We recognize that father had been incarcerated for approximately three
years before the termination hearing began. The question, however, is whether he is
presently unfit by reason of his incarceration.